A general resource for employees and management alike, covering issues old and new in the law of Ontario employment relationships.

Friday, February 21, 2014

Mountie Union Case Update

I have twicebefore posted about the ongoing constitutional litigation relating to an attempt by members of the RCMP to form a union. To briefly sum up, the RCMP is excluded from the general labour relations regime covering federal government employees, but instead has a mechanism called the Staff Relations Representative Program ("SRRP"), established by regulation to consult with management on behalf of the workers. In effect, the law creates the SRRP, and relieves the RCMP from having to deal with traditional 'unions'.

There are, however, a number of 'voluntary associations' (including the Mounted Police Association of Ontario, or MPAO), and they are trying to challenge the status quo, seeking an entitlement to bargain on behalf of Mounties. And after succeeding at the Superior Court of Justice in 2009, and subsequently being defeated at the Ontario Court of Appeal in 2012, the Supreme Court heard the appeal this week.

I would expect the decision to be a while coming. But there's some commentary to be made in the mean time, in light of the press the case is getting.

I've seen a quotation of MPAO President Rae Banwarie, published in a couple of sources, arguing that it will be a landmark decision if they lose:

It will be the beginning of the end for collective bargaining in Canada, as employers could justifiably impose labour programs and deny employees the right to select independent associations to bargain on their behalf.

The truth is far more nuanced.

Firstly, it's important to understand where this different treatment for Mounties arises. It is not the case that the RCMP Commissioner woke up one day and said, "Let's ban unions, and create the SRRP." Rather, the different treatment tracks to express language in statutes and regulations. It's true that government is not exactly arm's length from the management of the RCMP, but it's an important distinction when extrapolating the impact of the case.

If the SCC decides against the MPAO, it is absolutely not the case that the case will result in the average private sector employer being able to say, "We're going to follow the RCMP model, and implement an SRRP instead of letting our people unionize." They continue to be subject to applicable labour relations statutes, which are not at issue in the MPAO case. There's no slippery slope here, no catastrophic consequence of upholding the RCMP status quo.

Strictly speaking the case isn't at all about what employers are able to do; it's about what the government can say about labour rights and obligations. And the government, at all levels, already provides robust collective rights to most employees in most sectors, through existing labour relations legislation.

Most employers would not be able to do anything significantly differently unless the government decided to change those labour relations statutes. To the extent that the MPAO case, even theoretically, could have widespread impact on private sector employers, it's a question of the extent to which the government would be entitled to make such changes.

(As a side note, 'voluntary recognition' is available to private sector employers in Ontario - an employer can bring in a friendly union to become the bargaining agent. However, a voluntary recognition is subject to attack by the employees.)

But wait, there's more!

Secondly, the decision at the Court of Appeal turned heavily on the facts of the case.

The ability to form voluntary associations is a mark against the MPAO's case. Unlike the Dunmore case, where the lack of a statutory labour relations regime created a chilling effect making it 'effectively impossible' for agricultural workers to embark upon collective action, the Mounties have been able to form these associations without difficulty.

Perhaps more importantly, the application judge had found that the SRRP was an effective mode of employee representation - i.e. that the consultations between the SRRP and management were taken seriously and in good faith.

Ultimately, the Court of Appeal decision turned on the notion that the RCMP has not been denied access to meaningful collective action. So to the extent that an MPAO loss would set a precedent that the government is entitled to scale back labour relations protections, that proposition would be tempered by the condition that the resulting scheme still has to provide meaningful collective rights.

Personally, I generally liked the Court of Appeal decision on the matter. The notion that the constitutional freedom of association entitles everyone to a specific model of labour relations - i.e. the Wagner model - would unduly tie our hands. The Wagner model is the predominant form of labour relations in North America, but it is not without its flaws, and other models have been employed elsewhere. (Incidentally, there's a problem with the MPAO position in that even the model it advocates - as being constitutionally mandatory - doesn't really mesh completely with Wagner as well.)

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